Shape Marks - Intellectual Property Office of Singapore

Shape marksis used to recognising the latter marks instantly as signs identifying the product, thisis not necessarily so where the sign is indistinguishable from the appearance of theproduct itself.” (see Henkel KGaA v OHIM (Case T-30/00) at paragraph 49).The European Court of First Instance has found the following 3-D shape marks to benon-registrable:(i) “a rectangular parallelepiped shape with rounded edges” for soaps (Reason: arectangular parallelepiped is a shape commonly used for soaps. Where theclaimed shape is a slight variation of the various parallelepipedal shapescommonly used for soaps, it will not enable the relevant public to distinguishimmediately and with certainty the applicant’s soaps from those having adifferent trade origin);(ii) “round tablet, comprising two layers, whose colours, white (lower part) and red(upper part) are also claimed for registration” in respect of washing ordishwashing preparations in tablet form (Reason: the 3-dimensional shape…, around tablet, is one of the basic geometrical shapes and is an obvious one for aproduct intended for use in washing machines or dishwashers… Where, as in thepresent case, the target sector of the public sees the presence of colouredelements as a suggestion that the product has certain qualities, and not as anindication of its origin, there is no distinctive character).The European Court of First Instance has, however found the following 3-D shapes tobe registrable:“a bottle comprising a main section with, at its base, a recess, in the shape of aslightly truncated cone with, in its flat section, a stylised star in relief. In the lowerpart of the main section, which is nearly cylindrical from bottom to top, there is aninitial series of wavy grooves and, in the upper part, which is of slightly smallerdiameter and bobbin-shaped, there are spiralling grooves which form lozenges whenseen through the bottle. The top section, which is the shape of a slightly truncatedcone, ends in a cylindrical neck with a blue cap” in respect of beverages (Reason:although the bottle’s bobbin shape and the oblique, horizontal grooves are admittedlyfeatures of numerous bottles currently available on the market, particular note shouldbe taken of the manner in which those various elements are put together. In thatregard, it should be emphasized that a sign consisting of a combination of elements,each of which is devoid of any distinctive character, can be distinctive provided thatconcrete evidence, such as, for example, the way in which the various elements arecombined, indicates that the sign is greater than the mere sum of its constituentparts…the combination of the parts in this case, is truly specific and cannot beregarded as commonplace. The nearly cylindrical main section of the bottle bearsoblique grooves which, first, completely cover the bobbin-like part of the bottle andaccentuate the curved, rounded effect of the bottle’s upper part and second, arehighlighted by the presence on the lower part of the bottle of grooves running in theopposite direction, the whole forming a design which is striking and easy toremember. That combination thus gives the bottle at issue a particular appearancewhich, taking account also of the overall aesthetic result, is capable of holding theattention of the public concerned and enabling the public, made aware of the shape ofVersion 1 (13 January 2006) Page 10 Intellectual Property Office of Singapore